1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-7-1999

Blackburn v. United Parcel Ser

Precedential or Non-Precedential:

Docket 98-6075

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Recommended Citation

"Blackburn v. United Parcel Ser" (1999). 1999 Decisions. Paper 149.

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Filed June 7, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 98-6075 

BENJAMIN BLACKBURN, 

 Appellant 

v. 

UNITED PARCEL SERVICE, Inc.; 

PATRICIA KNOWLES 

On Appeal From the United States District Court 

For the District of New Jersey 

(D.C. Civ. No. 95-cv-04709) 

District Judge: Honorable Maryanne Trump Barry 

Argued: February 9, 1999 

Before: BECKER, Chief Judge, McKEE, Circuit Judges 

and LEE, District Judge.* 

(Filed June 7, 1999) 

 WALTER A. LUCAS, ESQUIRE 

 (ARGUED) 

 GLEN D. SAVITS, ESQUIRE 

 LISA NEMETH, ESQUIRE 

 Lucas, Savits & Marose, LLC 

 50 Northfield Avenue 

 West Orange, NJ 07052 

 Counsel for Appellant 

_________________________________________________________________ 

*Honorable Donald J. Lee, United States District Judge for the Western 

District of Pennsylvania, sitting by designation. 
 KATHLEEN M. McKENNA, ESQUIRE 

 (ARGUED) 

 DAVID W. MacGREGOR, ESQUIRE 

 Proskauer, Rose, LLP 

 1373 Broad Street 

 P.O. Box 4444 

 Clifton, NJ 07105-4444 

 Counsel for Appellees 

OPINION OF THE COURT 

BECKER, Chief Judge. 

In this diversity case, we are asked to review the District 

Court's grant of summary judgment for defendant United 

Parcel Service ("UPS"), which was grounded on the view 

that the conduct of plaintiff Benjamin Blackburn did not 

constitute protected activity under the New Jersey 

"whistleblower" statute, the Conscientious Employee

Protection Act ("CEPA"), N.J. Stat. Ann. SS 34:19-1 to -8. 

Being doubtful of the correctness of this conclusion of the 

District Court, we will assume that Blackburn has met his 

burden of establishing a prima facie case of retaliation 

under CEPA. We will instead affirm the District Court's 

judgment on the alternative ground that Blackburn has 

failed to offer sufficient admissible evidence to rebut UPS's 

proffered legitimate justification for his discharge--his 

putative violation of UPS's anti-nepotism, favoritism, 

integrity, and accountability policies. In order to reach the 

pretext issue, and so as to determine which evidence of 

Blackburn's might be admissible at trial, we must consider 

the contours of a number of exceptions to the rule against 

admitting hearsay evidence. In particular, we must 

interpret the seldom-invoked exception for reputation 

evidence concerning family relationships, see Fed. R. Evid. 

803(19), which bears on Blackburn's defense to the 

nepotism charges. Ultimately, we conclude that an 

insufficient quantum of evidence would be admissible at 

trial to rebut UPS's proffered legitimate justification for 

discharging Blackburn; hence, we affirm. 

 2 
I. Facts & Procedural History 

Blackburn worked for UPS1 for approximately eight years. 

He began work as a driver in June 1986, and was promoted 

several times, first becoming a manager in 1990. In early 

1992, Blackburn was transferred to a division of the 

company that priced UPS products and services. His duties 

included development of a flexible pricing project, the 

Incentive Administration System ("IAS"). In September 

1993, he was promoted to Marketing User Representative 

for the Marketing Information Group in Mahwah, New 

Jersey. In this position, his responsibilities included 

addressing, through the IAS or otherwise, UPS's loss of 

accounts and significant amounts of business to a 

competitor, Roadway Package Service. His principal 

supervisor at that time was Gary Hopwood, who was based 

in Atlanta. Hopwood's supervisor was Nicholas Bain, who 

was also Atlanta-based. 

A. Blackburn's Complaints to His Supervisors 

In November 1993, Blackburn first expressed to the IAS 

project manager, Rich Cooley, his concerns regarding 

possible antitrust violations arising out of customer 

discounts given through the IAS.2 Blackburn's concerns 

allegedly intensified when, in early 1994, UPS began to 

modify its pricing system and combined ground contracts 

with air contracts, a "bundling" practice that he alleged 

_________________________________________________________________ 

1. Also named as a defendant was Patricia Knowles, a supervisor in 

UPS's Human Resources Department. The District Court found that 

there was no basis for any claims against Knowles and dismissed her 

from the suit. Blackburn does not appear to contest this ruling, focusing 

his discussion on his claims against UPS. We likewise will confine our 

discussion to the issues concerning UPS, and therefore refer to the 

singular defendant throughout. 

2. In this appeal from summary judgment in favor of defendant, "we view 

the facts as they are set forth [in the record], in the light most 

favorable 

to the non-moving party [i.e., Blackburn], in order to determine whether 

there are material issues of disputed fact." Bechtel v. Robinson, 886 F.2d 

644, 647 (3d Cir. 1989). References in this opinion to "App." refer to 

Blackburn's Appendix, while references to "S.A." refer to the 

Supplemental Appendix filed by UPS. 

 3 
allowed even unprofitable ground customers to be enticed 

with air discounts. Blackburn believed that the IAS project 

was generally falling apart because of inadequate resources 

and a lack of management and direction. 

On March 22, 1994, Blackburn first put his concerns in 

writing, sending a memo to his supervisor, Hopwood. This 

memo stated, in relevant part: 

 As per our recent phone conversation, I'm detailing 

 here areas where I believe that we may run into 

 significant problems with respect to Anti-Trust issues 

 going forward. 

 I would appreciate your running these by [UPS in- 

 house attorney] Joel Creamer in order to determine 

 whether these issues will present legal obstacles. 

 1) No security check exists at present to authenticate 

 or assure that the information entered by field users is 

 either accurate or valid. As you know, it is important 

 that user information be subject to some type of 

 validation process or, the worst case scenario, we may 

 be providing a discount level that could easily be 

 interpreted as predatory in nature. 

 While I am unsure as to the extent of our obligation 

 in this area, it seems to me that we must have some 

 type of system in place that will authenticate, to some 

 reasonable degree, the input data that our sales reps 

 are entering in order to develop prices. To leave this to 

 their discretion is, I believe, flirting with disaster under 

 the present scenario. 

 Obviously, Creamer will have a much better sense 

 about the company's obligation here but to expound 

 upon my concern a bit more, it occurs to me that a 

 challenge to our pricing methodology cannot be 

 defended merely by the company taking the position 

 that it didn't know what its sales reps were doing in 

 developing discounts. That is to say, it is difficult for 

 me to see where a posture of "see no evil, hear no evil 

 . . ." is especially wise given our current position in the 

 Ground marketplace. I urge you to take action to 

 determine whether this [is] as significant as I fear it 

 may be down the road. 

 4 
 2) The present combination of Mark Matulavicus and 

 Leslie Gilstrap working as representatives of the 

 Strategic Cost groups causes me grave concerns as I 

 have been unable, as you know, to get any real 

 commitment from their manager as to the level of 

 comfort we should have in determining whether their 

 costing methodology is indeed in line with regularly 

 accepted costing practices or whether the Incentive 

 Administration System is intended to be built using 

 trial methodology. 

App. at 60 (ellipsis in original). 

On April 18, 1994, Blackburn sent another memo to 

Hopwood about his discomfort with the status of IAS. He 

suggested that it could not be properly validated and that 

there were many internal failures, including the improper 

billing of hundreds of customers. He expressed concern 

that releasing IAS to customers in its present state could 

cause "significant" liability, and "we ought to try and get 

things straightened out before we end up having to explain 

ourselves to someone outside of our organization." Id. at 62. 

On June 3, 1994, Blackburn wrote to Bain, expressing the 

view that the IAS project "will have gravely negative 

implications for the organization. . . . Both Rich Cooley and 

I have serious reservations as to whether the system we are 

building is indeed functioning properly and the potential 

outcome of this may be significant both internally and 

externally." Id. at 63. 

On June 15, 1994, Blackburn wrote another memo to 

Hopwood, stating that "I have serious concerns about the 

rate we are moving and what I believe to be the gross 

negligence of our group in assuring that the system works 

properly and, dare I say, within the confines of ordinary 

accepted business principles." Id. at 64. He could not "in 

good conscience" sign off on the system without reasonable 

testing: 

 Our billing problems have, I believe, only beg[u]n to 

 show themselves for what they truly will be come yet 

 another release of the system and I am extremely 

 uncomfortable with the idea of signing off on 

 something that is not only wrong but very likely illegal 

 in the way that it is used. 

 5 
 You have indicated to me that I should "relax" about 

 this and stated that the issues are too complex for 

 ordinary folks to understand. I must say that while I 

 agree that the issues are indeed complex, it won't take 

 a rocket scientist to figure out that the methodology 

 we've used in creating this system lacks a basic 

 integrity that is at the core of any worthwhile endeavor. 

 I fear that the result will not only be a loss of 

 confidence by our customers but also willingly and 

 knowingly violates fundamental obligations we have as 

 an organization to our fellow employees, our customers 

 and the public. 

 It certainly wouldn't take a genius to pick apart the 

 cost model as it stands at present and I suspect that 

 we could easily find glaring departures from commonly 

 accepted costing practices. . . . 

 Last but not least, I believe strongly that any 

 challenge to the practices in place would not stand a 

 legal litmus test. For this reason, I urge you on this 

 count to not only discuss the implications of this with 

 the legal staff but to also take another crack at making 

 the Strategic Costing group aware of the potential 

 impact should additional qualified resources not be 

 assigned to work on the project. 

Id. at 64-65. Blackburn sent a final memo to Hopwood on 

August 12, 1994: 

 Yesterday we had [a meeting] at your request. I've 

 written up the following summarization in order to 

 highlight the key points of what became a very 

 disturbing discussion. 

 . . . In reviewing my performance, you indicated that 

 I am performing at a very high level technically . .. . 

 You also indicated that you feel I need to improve in 

 the area of "being a team player". 

 As you stated, your concern regards my continued 

 criticism of the methodology used in IAS to apply 

 pricing formulas which may violate Anti-Trust 

 regulations. 

 . . . . 

 6 
 I believe that I have an obligation to raise these 

 concerns and your demand that I "not discuss these 

 with others" is especially difficult in light of the fact 

 that my concerns have been on-going for some time. 

 . . . . 

 You have agreed on numerous occasions with both 

 Pat Toomey and myself that this situation must be 

 corrected immediately if we are to avoid a significant 

 set of legal problems going forward. . . . 

 . . . I must nevertheless continue to remind you of 

 our obligation to assure proper pricing practices in 

 light of our role as the marketplace leader in the 

 ground segment. 

 As I have mentioned to you numerous times, the 

 stress that this subject has caused me is tremendous 

 and has been instrumental in the development of 

 serious health problems that originally led me to 

 request a transfer from the Marketing Information 

 group. 

 While I believe that I have been a solid "team player" 

 throughout my career, I am deeply bothered by your 

 clear message that my success on this project depends 

 more on my willingness to [toe] a line of silence amid 

 seriously questionable and unethical pricing and 

 management practices than on traditional measures of 

 accountability. 

 Your references to me as an "unimaginative stick in 

 the mud", a "snitch" and most interestingly, as a "nosy, 

 bean counting Jew" are unwanted, embarrassing and 

 frankly, unprofessional. 

Id. at 66-67. 

Blackburn was fired by UPS on September 29, 1994, 

approximately seven weeks after his last memo was sent to 

Hopwood. He alleges that he was fired for raising with his 

supervisors the possible illegality of UPS's pricing system, 

and that his firing violates CEPA. 

 7 
B. UPS's Stated Reason for Blackburn's Firing 

The position of UPS is twofold. First, it asserts that 

Blackburn's conduct in complaining to his superiors about 

problems with the IAS did not constitute protected activity 

under CEPA. Second, UPS contends that Blackburn was

fired not for his complaints regarding the IAS, but for 

violations of UPS's anti-nepotism, favoritism, integrity, and 

accountability policies. 

UPS has had an anti-nepotism policy in its Policy Book 

for management employees since 1965. The 1992 version, 

in effect during the period in question, states: 

 We Strictly Limit the Employment of Relatives. .. . 

 . . . . 

 . . . [W]e prohibit hiring--for either full-time or part- 

 time employment--relatives of active employees . .. . 

 For the same reasons, we discourage continuation of 

 the full-time or part-time employment of any employee 

 who marries another employee while either person 

 holds a management position in the same district, the 

 same region office or Corporate Headquarters. 

S.A. at 118. The Policy Book does not define "relatives." The 

favoritism policy states, "We Treat Our People Fairly and 

Without Favoritism. . . . We have the responsibility to avoid 

any relationship that may result in actual or perceived 

favoritism." Id. at 123. The integrity policy states: 

 We Insist Upon Integrity in Our People. . . . 

 . . . We insist on integrity in the preparation and 

 approval of all reports. 

 We expect our people to be honest with respect to 

 intangible things as well--in the time, effort, and full 

 performance of their jobs; in fair play in dealing with 

 others; and in the acknowledgment of mistakes or 

 other shortcomings. 

 . . . [W]hen we do discover a dishonest person in our 

 organization, we deal with that individual quickly and 

 firmly. 

 8 
Id. at 134. Finally, the accountability policy states: 

 We Are All Accountable for Compliance With Our 

 Policies. As individuals, we do not have the authority to 

 change or disregard any of our company's policies. We 

 are expected to follow existing policies, even if not 

 always in complete agreement with them. We must be 

 careful not to misinterpret or violate a policy's spirit 

 and intent. If in doubt, we should check with others for 

 guidance. 

 . . . . 

 Our managers and supervisors set the example for 

 carrying out our policies. . . . They, therefore, are 

 expected to lead the way for other UPS people--by word 

 and action--in living up to our policies. 

Id. at 110. As a management employee, Blackburn received 

a copy of the Policy Book and was aware of these policies. 

Blackburn married Loren Morrissey in April of 1990. On 

September 29, 1993, Linda Shepard, Morrissey's sister, 

applied for a job at UPS's Mahwah facility. Shepard stated 

on her employment application that she did not have any 

relatives employed by UPS. In December of 1993, Shepard 

was hired as a Methods Analyst at Mahwah, and began

work in the same building as Blackburn. Blackburn was 

aware that Shepard had applied for and gotten the job, and 

at times commuted to work with Shepard and had contact 

with her during the workday by, for example, meeting her 

for lunch. At no time before September 1994 did Blackburn 

disclose his relationship with Shepard to UPS. See id. at 14 

(Pl.'s Dep. at 182-83). At various times after Shepard's 

hiring, and before September 1994, Blackburn 

recommended Shepard for other UPS positions without

informing those to whom he made the recommendations

that Shepard was his sister-in-law. 

On September 14, 1994, UPS's Loss Prevention 

Department received an anonymous complaint, forwarded 

to Patricia Knowles of UPS's Human Resources Department 

at Mahwah, that Blackburn was Shepard's brother-in-law. 

The complaint also expressed concern that Shepard might 

be promoted because of Blackburn's influence. That same 

 9 
day, Knowles and UPS manager Nigel Watson met with 

Shepard and questioned her regarding her relationship with 

Blackburn. After initially denying that Blackburn was her 

brother-in-law, Shepard eventually admitted that he was 

married to her sister. However, she gave an incorrect date 

for Blackburn's marriage to her sister, claiming that they 

were married in April 1994, after Shepard had been hired 

by UPS. 

After verifying the actual date of Blackburn's marriage 

(through UPS's Human Resources Department in Atlanta), 

Knowles confronted Blackburn on September 15, 1994.

Blackburn denied that he was "related" to Shepard but 

admitted that he was married to her sister. He also

expressed disbelief that the relationship was of concern to 

UPS. On September 16, Knowles met again with Shepard, 

who claimed that Blackburn was aware that Shepard was 

interviewing with UPS when she originally sought a job 

there. On September 29, 1994, UPS offered Shepard a

chance to resign, on the grounds that she had lied on her 

application (by indicating that she was not related to 

anyone at UPS) and had lied to Knowles when confronted 

with this information. Shepard resigned on September 30, 

1994. 

Also in September, Blackburn's supervisor, Hopwood,

was informed of the events surrounding Shepard's hiring 

and her relationship to Blackburn. Hopwood spoke with 

Blackburn and, upon learning the identity of Blackburn's 

sister-in-law, realized that she was the person Blackburn 

had recommended to him and another manager for 

openings in the department without informing them that 

she was his sister-in-law. Blackburn allegedly refused to 

acknowledge that his conduct was inappropriate, and told 

Hopkins that UPS would regret it if it pursued the matter. 

On September 29, 1994, Hopwood's supervisor Bain and 

Human Resources manager James Daniels met with 

Blackburn, who stated that he was not "related" to Shepard 

but that he was her brother-in-law. He denied any 

misconduct in permitting her to be hired, recommending 

her for positions without revealing the nature of their 

relationship, and claiming not to be related to her. Bain 

advised Blackburn that he had violated the anti-nepotism 

 10 
policy and the policies on favoritism, integrity, and 

accountability. That day, after consultation with Daniels 

and two Human Resources coordinators, Bain fired 

Blackburn. 

C. The Ensuing Litigation 

In August 1995, Blackburn filed suit in New Jersey state 

court, claiming that UPS had fired him in violation of CEPA, 

and seeking compensatory and punitive damages, 

attorneys' fees, costs, and such other relief as the court 

might provide. UPS removed the case to the District Court 

for the District of New Jersey on the basis of diversity 

jurisdiction. See 28 U.S.C. S 1332. 3 Following discovery, 

UPS moved for summary judgment under Federal Rule of 

Civil Procedure 56(b). 

The District Court found that Blackburn's conduct was 

not covered by CEPA, and it therefore granted summary 

judgment for UPS. See Blackburn v. United Parcel Serv., 

Inc., 3 F. Supp. 2d 504, 514-17 (D.N.J. 1998). The District 

Court's conclusion that Blackburn's complaints regarding 

the IAS did not constitute protected activity under CEPA 

was based on a number of factors. First, the court stated 

that it "must determine, as a matter of law, whether there 

_________________________________________________________________ 

3. Blackburn was a citizen of Connecticut at the time suit was filed. UPS 

is a citizen of New York. Knowles is a citizen of New Jersey. Therefore, 

complete diversity exists and subject-matter jurisdiction is proper. 

However, we note that this case was technically not removable under 28 

U.S.C. S 1441 (1994), as a civil action in which jurisdiction is based on 

diversity of citizenship may be removed "only if none of the parties in 

interest properly joined and served as defendants is a citizen of the 

State 

in which such action is brought." Id.S 1441(b). Here, one of the 

defendants is a citizen of the state in which the action was brought. 

Nonetheless, under 28 U.S.C. S 1447(c) (Supp. II 1996), this defect is 

waived if not raised within 30 days after the notice of removal is filed. 

No 

motion to remand having been filed within this period, jurisdiction in the 

District Court was properly exercised. Cf. Korea Exch. Bank v. Trackwise 

Sales Corp., 66 F.3d 46, 50-51 (3d Cir. 1995) ("Because removal by a 

forum defendant in noncompliance with section 1441(b) does not deprive 

a federal court of subject matter jurisdiction, it is clear under section 

1447(c) that this irregularity must be the subject of a motion to remand 

within 30 days after filing the notice of removal."). 

 11 
exists a clear expression of law, either in a statute or rule 

or in a regulation promulgated pursuant to a statute, that 

`would be violated if the facts as alleged are true.' " Id. at 

514 (citation and emphasis omitted). It then held that 

Blackburn had not provided the court "with a scintilla of 

evidence . . . that would permit [the] court to conclude, as 

a matter of law, that any antitrust law would be violated if 

the facts, as described by plaintiff, were true." Id. The court 

found instead that Blackburn had only complained to his 

supervisors "that a law might someday be violated if certain 

precautions [were] not taken or certain changes [were] not 

made," and that this complaint about potential future 

violations of the law was not covered by CEPA. Id. 

The court also held that no reasonable trier of fact could 

find that Blackburn reasonably believed that the conduct 

he complained of to his supervisor violated the antitrust 

laws. See id. at 515. The court found that all of the 

evidence, even viewed in a light most favorable to 

Blackburn, demonstrated that he "merely questioned and 

disagreed with UPS's pricing practices and was concerned 

about the potential legal impact." Id. at 517. It concluded 

that "[t]hese type of complaints do not constitute 

`whistleblowing,' particularly where the vague references to 

potential illegalities are mixed with and, indeed, dwarfed by 

a potpourri of other unrelated complaints." Id. (citation 

omitted). For these reasons, the court granted UPS's motion 

for summary judgment. The District Court did not reach 

the pretext issue on which we base our decision,finding 

that a genuine issue of material fact existed regarding 

UPS's claimed reason for firing Blackburn. See id. at 508 

n.2. 

Blackburn filed a timely notice of appeal. We have 

jurisdiction to hear the appeal under 28 U.S.C. S 1291. We 

exercise plenary review over a grant of summary judgment, 

"construing all evidence and resolving all doubts raised by 

affidavits, depositions, answers to interrogatories, and 

admissions on file in favor of the non-moving party." Iberia 

Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998). 

 12 
II. The New Jersey Conscientious Employee 

 Protection Act 

A. Introduction 

The New Jersey Conscientious Employee Protection Act, 

enacted in 1986, provides in relevant part: 

 An employer shall not take any retaliatory action 

 against an employee because the employee does any of 

 the following: 

 a. Discloses, or threatens to disclose to a supervisor 

 or to a public body an activity, policy or practice of the 

 employer . . . that the employee reasonably believes is 

 in violation of a law, or a rule or regulation 

 promulgated pursuant to law . . .; 

 . . . . 

 c. Objects to, or refuses to participate in any activity, 

 policy or practice which the employee reasonably 

 believes: 

 (1) is in violation of a law, or a rule or regulation 

 promulgated pursuant to law . . .; 

 (2) is fraudulent or criminal; or 

 (3) is incompatible with a clear mandate of public 

 policy concerning the public health, safety or welfare or 

 protection of the environment. 

N.J. Stat. Ann. S 34:19-3 (1988 & Supp. 1999)."Retaliatory 

action" includes discharge, suspension, demotion, or other 

adverse action involving an employee's terms and 

conditions of employment. See id. S 34:19-2(e). 

The New Jersey courts have repeatedly held that CEPA 

was enacted "to protect employees from retaliatory actions 

by employers," Abbamont v. Piscataway Township Bd. of 

Educ., 650 A.2d 958, 964 (N.J. 1994), and that it is 

"remedial legislation" that should be liberally construed to 

effectuate the legislature's protective intent, see Young v. 

Schering Corp., 660 A.2d 1153, 1158 (N.J. 1995); see also 

Barratt v. Cushman & Wakefield, Inc., 675 A.2d 1094, 1098 

(N.J. 1996) ("[C]ourts should construe CEPA liberally to 

 13 
achieve its remedial purpose."). Like the New Jersey Law 

Against Discrimination ("LAD"), CEPA "seeks to overcome 

the victimization of employees and to protect those who are 

especially vulnerable in the workplace from the improper or 

unlawful exercise of authority by employers." Abbamont, 

650 A.2d at 964. In interpreting CEPA's various provisions, 

New Jersey courts have held that its protections should be 

construed broadly and its exceptions and limitations read 

narrowly: 

 The words used may be expanded or limited according 

 to the manifest reason and obvious purpose of the law. 

 . . . The language is not to be given a rigid 

 interpretation when it is apparent that such meaning 

 was not intended. The rule of strict construction 

 cannot be allowed to defeat the evident legislative 

 design. 

Crusco v. Oakland Care Ctr., Inc., 702 A.2d 1363, 1367 

(N.J. Super. Ct. App. Div. 1997) (internal quotation 

omitted). 

B. Elements of a CEPA Case 

Our analysis of a retaliatory discharge claim under CEPA 

is similar to our analysis of a retaliation claim under federal 

discrimination law. Cf. Velantzas v. Colgate-Palmolive Co., 

536 A.2d 237, 238 n.1 (N.J. 1988) (citing federal court 

decisions on retaliatory discharge in a case arising under 

New Jersey law); Kolb v. Burns, 727 A.2d 525, 530-31 (N.J. 

Super. Ct. App. Div. 1999) (adopting the federal court 

analysis of retaliation claims "as legally sound and 

consistent with New Jersey's general treatment of claims 

asserted under anti-discrimination [legislation]"). First, the 

plaintiff must make out a prima facie case of retaliatory 

discharge. The court in Kolb held that a CEPA plaintiff 

must demonstrate four elements to meet this initial burden: 

 (1) that he or she reasonably believed that his or her 

 employer's conduct was violating either a law or a rule 

 or regulation promulgated pursuant to law; (2) that he 

 or she performed whistle-blowing activity described in 

 [CEPA]; (3) an adverse employment action was taken 

 against him or her; and (4) a causal connection exists 

 14 
 between the whistle-blowing activity and the adverse 

 employment action. 

Id. at 530; see also Young v. Schering Corp., 645 A.2d 1238, 

1244 (N.J. Super. Ct. App. Div. 1994) [Young I] (listing two 

elements for prima facie case: a " `belief that illegal conduct 

was occurring [that] had an objectively reasonable basis in 

fact' " and an adverse employment action that was causally 

connected to the plaintiff's disclosure or threatened 

disclosure of the illegal conduct to a supervisor or public 

body (citation omitted)), aff'd, 660 A.2d 1153 (N.J. 1995); 

cf. Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 

(3d Cir. 1997) (holding that a plaintiff in a federal 

retaliation case "must show 1) that she engaged in 

protected activity, 2) that the employer took adverse action 

against her, and 3) that a causal link exists between the 

protected activity and the employer's adverse action"). 

In addition to the prima facie case, the well-established 

burden-shifting analysis that is used in federal 

discrimination cases involving "pretext" claims is 

appropriately used in a CEPA case. See Kolb, 727 A.2d at 

530-31 (outlining the burden-shifting analysis under Title 

VII and LAD). Once the plaintiff meets his prima facie 

burden, "the burden of production shifts to the defendant 

to `articulate some legitimate, nondiscriminatory reason' for 

its actions." Woodson v. Scott Paper Co., 109 F.3d 913, 920 

n.2 (3d Cir.) (quoting McDonnell Douglas Corp. v. Green, 

411 U.S. 792, 802 (1973)), cert. denied, 118 S. Ct. 299 

(1997). Once the defendant articulates a legitimate reason 

for the adverse employment action, the presumption of 

retaliatory discharge created by the prima facie case 

disappears and the burden shifts back to the plaintiff. See 

id. Then, "[t]o prevail at trial, the plaintiff must convince 

the factfinder `both that the reason [given by the employer] 

was false, and that [retaliation] was the real reason.' " Id. 

(quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 

(1993) (emphasis omitted)). 

For summary judgment purposes, the court must 

determine whether the plaintiff has offered sufficient 

evidence for a reasonable jury to find that the employer's 

proffered reason for the discharge was pretextual and that 

retaliation for the whistleblowing was the real reason for 

 15 
the discharge. See Sempier v. Johnson & Higgins , 45 F.3d 

724, 728 (3d Cir. 1995) ("[T]o defeat a summary judgment 

motion based on a defendant's proffer of a 

nondiscriminatory reason, a plaintiff who has made a prima 

facie showing of discrimination need only point to evidence 

establishing a reasonable inference that the employer's 

proffered explanation is unworthy of credence."). Typically, 

the types of evidence that the plaintiff must point to are 

"inconsistencies or anomalies that could support an

inference that the employer did not act for its stated 

reasons." Id. at 731; see also Kolb , 727 A.2d at 531 (citing 

Third Circuit Title VII case law regarding plaintiff's burden 

to show pretext at summary judgment stage). 

III. Blackburn's CEPA Claim 

A. Prima Facie Case 

In this case, the District Court found that Blackburn had 

failed to make out a prima facie case because he had not 

shown that he had engaged in protected whistleblowing 

activity. Given New Jersey case law and the intent of the 

legislature in enacting CEPA, we have some doubt as to the 

correctness of the District Court's conclusion on this point.4 

_________________________________________________________________ 

4. As noted in the text supra, the District Court relied primarily on the 

fact that Blackburn had not clearly articulated the precise law that UPS 

would be violating if its actions were as he alleged, and that he only 

complained of potential future violations of the law, rather than ongoing 

violations. We note, however, that New Jersey courts have held that a 

CEPA plaintiff need not cite "any specific statute, rule or regulation 

which was allegedly violated" when disclosing employer wrongdoing or 

even when filing a CEPA action. Regan v. City of New Brunswick, 702 

A.2d 523, 528-29 (N.J. Super. Ct. App. Div. 1997). For example, in 

Mehlman v. Mobil Oil Corp., 707 A.2d 1000 (N.J. 1998), the plaintiff 

complained about his employer's conduct without being aware of any 

specific laws, guidelines, or government policies that his employer was 

violating. The court nonetheless held that "[s]pecific knowledge of the 

precise source of public policy [allegedly violated] is not required. The 

object of CEPA is not to make lawyers out of conscientious employees 

but rather to prevent retaliation against those employees who object to 

employer conduct that they reasonably believe to be unlawful or 

indisputably dangerous to the public health, safety or welfare." Id. at 

1015-16. 

 16 
However, rather than engage in a lengthy exegesis on the 

matter, we will assume that Blackburn presented sufficient 

evidence to meet his prima facie burden at the summary 

judgment stage, and will dispose of this appeal on the 

alternative ground that he has presented insufficient 

evidence of pretext to survive summary judgment. 

_________________________________________________________________ 

Further, while CEPA is not intended to protect chronic complainers or 

those who simply disagree with their employer's lawful actions, it does 

protect those persons who disclose their employer's activities when, 

"given the circumstantial evidence, a reasonable lay person would 

conclude that illegal activity was going on." Young I, 645 A.2d at 1244 

(internal quotation omitted); see also Mehlman v. Mobil Oil Corp., 676 

A.2d 1143, 1156 (N.J. Super. Ct. App. Div. 1996) ("The sine qua non of 

a CEPA claim is not the actual occurrence of a violation of promulgated 

authority or public policy, but rather the existence of a reasonable 

belief 

to the effect that such authority or policy has been breached."), aff'd, 

707 A.2d 1000 (N.J. 1998). Finally, the New Jersey Supreme Court has 

refused to engraft either temporal or geographic limitations onto CEPA 

claims, holding that disclosure of past violations of law or complaints 

regarding violations of another nation's laws are both protected under 

the statute. See Mehlman, 707 A.2d at 1016-17; Barratt, 675 A.2d at 

1100 ("CEPA protects more than the disclosure of illegal acts that are 

ongoing. To require employees to confirm that the illegal conduct was 

ongoing would inhibit them from reporting that conduct. Disclosure of 

illegal conduct that is past, moreover, like that of ongoing conduct, can 

be in the public interest."). 

On the other hand, while the New Jersey courts have construed CEPA 

broadly, it is clear that much of Blackburn's lamentation involved 

internal disputes over funding and staffing. More importantly, his 

allegations regarding one of the most complex and difficult-to-prove 

areas of antitrust law--predatory pricing--are undermined by his patent 

lack of sophistication in this area. In fact, Blackburn conceded that "all 

I know about anti-trust is what I've learned at UPS." App. at 53. Despite 

being liberally construed by the New Jersey courts, CEPA is not intended 

to shelter every alarmist who disrupts his employer's operations by 

constantly declaring that illegal activity is afoot--or, as in this case, 

is 

about to be afoot. Therefore, we believe it is a close question whether 

the 

District Court correctly concluded that Blackburn's activity was not 

protected whistleblowing under the Act, and we decline to reach this 

difficult issue, as our ultimate decision in this case makes it 

unnecessary to do so. 

 17 
B. UPS's Stated Reason for the Discharge 

UPS's stated reason for firing Blackburn was his violation 

of the company's anti-nepotism, favoritism, integrity, and 

accountability policies, which it placed in the record. UPS 

adduced evidence that Blackburn failed to divulge that 

Shepard was his relative, and that he recommended her for 

positions within UPS without disclosing to the relevant 

decisionmakers that she was his sister-in-law. UPS also 

offered evidence that it has consistently enforced its antinepotism policy, which supports its proffer that 

Blackburn's violation of this policy was the actual reason 

he was discharged.5 Indeed, Blackburn himself conceded at 

his deposition that UPS has regularly enforced the antinepotism policy (although, as we detail below, he offers 

purported examples of the policy's nonenforcement).

Therefore, UPS has met its burden of production at the 

second step of the burden-shifting analysis. See Woodson, 

109 F.3d at 920 n.2 ("The defendant's burden at this stage 

is relatively light: it is satisfied if the defendant articulates 

any legitimate reason for the discharge . . . ."). It is thus 

incumbent upon Blackburn to offer sufficient admissible 

evidence that this justification is pretextual and that the 

real reason that he was fired was for complaining about 

UPS's possible antitrust violations to survive UPS's motion 

for summary judgment. In other words, he must show 

" `weaknesses, implausibilities, inconsistencies, 

incoherencies, or contradictions in the employer's proffered 

legitimate reasons.' " Kolb, 727 A.2d at 531 (quoting 

Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)). 

_________________________________________________________________ 

5. While Blackburn has suggested that the anti-nepotism policy does not 

apply to his situation because Shepard is not a blood relation, he does 

not press this point, relying instead on UPS's purported nonenforcement 

of the policy. However, UPS alleges that Blackburn's conduct also 

violated its favoritism, integrity, and accountability policies, and he 

has 

offered little evidence in response to this proffer. 

 18 
C. Pretext 

1. Blackburn's Evidence 

In order to meet his burden, Blackburn must point to 

admissible evidence in the record "showing that there is a 

genuine issue for trial." Fed. R. Civ. P. 56(e). In attempting 

to show that UPS's stated reason for firing him was

pretextual, Blackburn claims that he never hid his 

relationship with Shepard. Rather, he testified that he 

regularly commuted to and from work with her, entered the 

building with her each day, often met her for lunch and 

breaks, displayed a wedding picture prominently on his 

desk with Shepard in the wedding party, and was otherwise 

open about the relationship, including the fact that they 

shared an address. Similarly, Shepard testified that she 

told colleagues about the relationship and even inquired 

about it at her initial interview, and nothing was done. 

Blackburn also testified that he assumed that the 

prohibition on the hiring of "relatives" included only blood 

relatives.6 

We find the foregoing less than persuasive evidence to 

support Blackburn's burden, even at summary judgment, 

of proving that UPS's stated reason was pretextual. The 

only portion of this evidence that is probative of pretext-- 

i.e., that UPS knew of Blackburn's relationship to Shepard 

but did nothing about it, and later fired him for his 

whistleblowing activity under the pretext of its antinepotism policy--is Shepard's allegation that, when she 

applied for a job at UPS, she informed the initial interviewer 

that her brother-in-law worked for UPS. There is no

indication that the decisionmakers who fired Blackburn for 

his violations of the anti-nepotism and related policies were 

informed of Shepard's comments at her interview. In fact, 

_________________________________________________________________ 

6. Although UPS's policy was less than clear in defining the prohibited 

relationships, the clarity of the policy or the reasonableness of 

Blackburn's alleged misreading of the policy are not necessarily relevant 

to the pretext issue. If the policy actually covered relationships such as 

Blackburn and Shepard's, and if this (along with the concomitant 

violations of the other policies) was the real reason that Blackburn was 

discharged, Blackburn's CEPA case must fail. 

 19 
the record evidence overwhelmingly supports the 

conclusion that the relevant UPS managers were unaware 

of Blackburn's relationship with Shepard until the 

anonymous tip was received in September 1994, at which 

time immediate action was taken against both Shepard and 

Blackburn. Cf. Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 

201-02 (3d Cir. 1996) (holding that jury could find that 

employer had retaliatory intent because relevant 

decisionmakers were aware of plaintiff's discrimination 

complaints). 

Blackburn's stronger argument for pretext--and one that 

would be sufficient to preclude summary judgment, if 

supported by adequate admissible evidence--is that UPS 

did not consistently enforce its anti-nepotism policy, which, 

according to UPS, was the primary basis for his discharge. 

If Blackburn has presented admissible evidence that would 

raise a fact question whether UPS enforced its antinepotism policy, it would be for a jury to decide whether 

UPS's proffered reason for firing him was pretextual. Given 

our assumption that Blackburn has presented sufficient 

evidence to meet his prima facie burden under CEPA, we 

would have to reverse summary judgment in UPS's favor if 

a fact issue regarding pretext existed. 

In support of his pretext argument, Blackburn provides 

numerous examples of UPS employees who were related to 

other employees yet allegedly were not disciplined or 

terminated for this apparent violation of the anti-nepotism 

policy. His examples include brothers-in-law, siblings, 

spouses, uncles and nephews, fathers and sons, and 

intimate relationships between employees who were dating 

or living together. UPS responds with evidence that, within 

the last five years, twenty-nine people at Mahwah left UPS 

in accordance with the anti-nepotism policy, and that no 

exceptions currently exist there. 

In order to resolve this issue, we must first determine 

whether any of Blackburn's evidence in this regard is 

admissible, based as it is on hearsay and, in some 

instances, multiple hearsay. See Philbin v. Trans Union 

Corp., 101 F.3d 957, 961 n.1 (3d Cir. 1996) (noting that a 

hearsay statement that is not capable of being admissible 

at trial should not be considered on a summary judgment 

 20 
motion). Then, we must determine whether the hearsay 

evidence that might be admissible at trial is sufficient to 

defeat UPS's summary judgment motion or whether 

judgment was properly entered in favor of UPS. See 

Petruzzi's IGA Supermarkets, Inc. v. Darling-Del. Co., 998 

F.2d 1224, 1234 n.9 (3d Cir. 1993). 

Blackburn's testimony regarding UPS employees he 

believes to be related includes the following. We take the 

descriptions of these allegedly related persons from 

Blackburn's appellate briefs, see Appellant's Br. at 16-17; 

Suppl. Br. at 1-3, with citations to the place in the record 

in which the evidence is presented: 

 (1) Bill and Tim Jawor, a father and son (App. at 109); 

 (2) Jackie and Sal Biancardi, a married couple who 

 work at the UPS facility in Morristown (id.); 

 (3) Larry Zileski and Mr. Manzi, brothers-in-law (id. at 

 95); 

 (4) Barry Graziano and Tim Krill, relation not identified 

 (id. at 96); 

 (5) Steve Collamore and Eileen O'Connor, husband and 

 wife (id. at 97); 

 (6) an uncle and nephew working together at a UPS 

 facility in Parsippany (id. at 103-04); 

 (7) two brothers in New York (id.); 

 (8) Mark Hopkins and his wife, Beth (id. at 97); 

 (9) Bill and Art Weyrauch, brothers (id. at 96-97); 

 (10) Don McKenny and Vern Cormie, relation not 

 identified (id. at 97); 

 (11) Joe Rossano, Jack Davies, and Joe Reynolds, 

 relation not identified (id.); 

 (12) Lorrain Curley and Dan Grace, relation not 

 identified (id.); 

 (13) Karen Montemarano and another driver in a 

 Yorktown, New York, UPS facility (id.); 

 21 
 (14) Kathleen Jewell and someone else, relation not 

 identified (id. at 101); and 

 (15) Howard Kaufman and "Mindy," in the Mt. Vernon 

 facility (id. at 101-02). 

Blackburn has no personal knowledge of any of the 

alleged relationships listed above. See Fed. R. Evid. 602. 

Rather, he testified in his deposition that he was told of 

these relationships by other persons. The alleged 

relationships are offered for their own truth. Therefore, 

Blackburn's information is based on hearsay, see Fed. R. 

Evid. 801(c), and in some cases on multiple hearsay, so 

that it must fall within an exception to the rule against 

hearsay to be admissible. See Fed. R. Evid. 802 (providing 

that hearsay is not admissible unless it falls under a 

particular exception); Fed. R. Evid. 805 (providing that 

multiple hearsay is admissible "if each part of the combined 

statements conforms with an exception to the hearsay 

rule"). 

When asked by us to comment on the admissibility of his 

pretext evidence, and in particular on the applicability of 

Federal Rule of Evidence 803(19), Blackburn responded 

that this evidence was admissible as admissions by a partyopponent, Fed. R. Evid. 801(d)(2)(A), admissions by a partyopponent's agent, Fed. R. Evid. 801(d)(2)(D), statements 

against interest, Fed. R. Evid. 804(b)(3), or reputation 

evidence concerning family history, Fed. R. Evid. 803(19). 

We consider the first, second, and fourth of these 

contentions below. We dismiss as without merit 

Blackburn's attempt to admit any of the evidence he has 

presented under the exception for statements against 

interest. Not only do we find the contention that the 

particular statements at issue were "against interest" to be 

baseless within the meaning of the Rule,7 but there is no 

_________________________________________________________________ 

7. A statement is against interest when it "is so far contrary to [the 

declarant's] pecuniary, proprietary or penal interest that `a reasonable 

person in the declarant's position would not have made the statement 

unless believing it to be true.' " United States v. Boyce, 849 F.2d 833, 

836 (3d Cir. 1988) (quoting Fed. R. Evid. 804(b)(3)). Blackburn has 

offered no evidence that unavailable declarants made"statements which 

are damaging to themselves," Fed. R. Evid. 804(b)(3) advisory 

committee's note, so as to come under the exception in the Rule. 

 22 
indication that the hearsay declarants are unavailable, as 

required by Rule 804. 

2. Rule 801(d)(2)(A): Admissions by Party-Opponent 

Under Rule 801(d)(2)(A), a statement offered against a 

party is not hearsay if it is the party's own statement. 

Blackburn claims that the first two relationships listed 

above fall within the terms of Rule 801(d)(2)(A), because 

these relationships were identified by defendant Patricia 

Knowles at her deposition. Admissions by a party-opponent 

need not be based on personal knowledge to be admitted 

under Rule 801(d)(2). See United States v. Ammar, 714 F.2d 

238, 254 (3d Cir. 1983). Therefore, we need not be 

concerned here that the basis for Knowles's statement is 

likely hearsay--i.e., she was told by someone (or discerned 

from a written document) that Bill and Tim Jawor were 

father and son, and that Jackie and Sal Biancardi were 

married--which would ordinarily require an additional 

exception to make her statements admissible. See Fed. R. 

Evid. 805. 

Although these statements are admissible as admissions 

by a party-opponent,8 only one is arguably relevant to the 

pretext issue. Knowles testified that the Jawors worked at 

UPS in 1973, more than twenty years before Blackburn was 

fired and before UPS's current anti-nepotism policy was in 

force. We therefore find the testimony regarding the Jawors 

immaterial to the pretext issue.9 On the other hand, 

_________________________________________________________________ 

8. We note, however, that the statements by Knowles might be more 

appropriately admitted under Rule 801(d)(2)(D), as statements of an 

agent concerning a matter within the scope of her agency, as Knowles is 

technically no longer a party to this case. Further, if the statements 

were 

admissible under Rule 801(d)(2)(D), they would be admissible against 

UPS, while the statements would be admissible under Rule 801(d)(2)(A), 

if at all, only against Knowles. 

9. Although he appears to have abandoned his reliance on it, 

Blackburn's initial testimony regarding two sets of brothers--the Caseys 

and the Oberkotters--is indicative of the lack of relevance of much of his 

pretext evidence. Both of these sets of brothers worked for UPS in the 

1920s, many decades before the company established its current antinepotism policy. 

 23 
Knowles testified that the Biancardis remain UPS 

employees, Jackie as an administrative assistant and Sal as 

a driver. This could therefore be probative evidence in 

support of Blackburn's pretext argument. However, the 

anti-nepotism policy prohibits only the hiring of related 

persons, and the continued employment of persons who 

marry while working for UPS when one of them is a 

management employee. The Biancardis reportedly were

married after both had begun working for UPS, and neither 

holds a management position, so their continued 

employment does not appear to come within the 

prohibitions of the anti-nepotism policy. 

3. Rule 801(d)(2)(D): Admissions by 

 Party-Opponent's Agent 

Blackburn argues that testimony regarding the 

relationships of Larry Zileski and Mr. Manzi; Barry

Graziano and Tim Krill; Steve Collamore and Eileen 

O'Connor; the unnamed uncle and nephew working 

together at the UPS facility in Parsippany; and the

unnamed brothers in New York, are all admissible as

admissions by UPS's employees, under Rule 801(d)(2)(D). 

Blackburn reads the Rule much too broadly, however, and 

fails to establish that most of these statements were made 

by UPS's agents or employees "concerning a matter within 

the scope of the agency or employment." Fed. R. Evid. 

801(d)(2)(D). We discuss each alleged relationship in turn. 

First, Blackburn testified that a UPS employee, John 

Cipriani, informed him that UPS employees Larry Zileski 

and a Mr. Manzi were brothers-in-law. Cipriani's position is 

not identified, however, and there is no indication that the 

statement was made concerning a matter within the scope 

of Cipriani's agency or employment with UPS.10 Blackburn 

testified that Zileski himself told Blackburn that Manzi was 

his brother-in-law. This statement too is inadmissible 

hearsay under Rule 801(d)(2)(D). Although Zileski may be 

able to so testify on the basis of Rule 803(19), see infra, 

_________________________________________________________________ 

10. It is also clear that Cipriani is not a party-opponent, and there is 

no 

indication that he either is authorized by UPS to speak for it or is its 

coconspirator. See Fed. R. Evid. 801(d)(2). 

 24 
there is again no indication that he was speaking for UPS 

on a matter within the scope of his agency or employment 

so that Blackburn could testify as to what Zileski told him.11 

Blackburn testified that UPS Operations Manager 

Michael Lattari informed him that Graziano and Krill were 

somehow related. While Lattari may have been speaking 

about a matter within the scope of his agency or 

employment, Blackburn has offered no evidence of the 

actual relationship between Graziano and Krill, whether it 

was one that was covered by the UPS policy, and whether 

UPS addressed any violation of the policy by discharging 

one of the employees. Therefore, while this may be 

appropriate Rule 801(d)(2)(D) evidence, it would be

immaterial to prove that UPS's stated reason for 

discharging Blackburn was pretextual. 

Blackburn testified that Steve Collamore told him that 

Collamore's wife, Eileen O'Connor, also worked for UPS. 

However, Blackburn admitted that at some point after they 

got married, O'Connor left UPS, and there is no indication 

that they were both allowed to remain at UPS in violation 

of the anti-nepotism policy. Finally, while Linda Shepard 

testified that she was told of certain related employees by 

the person who interviewed her for a job at UPS, these 

employees are not even identified by name and no 

testimony was provided as to whether they were disciplined 

for violating UPS's anti-nepotism policy. We find this 

evidence plainly inadmissible to prove pretext, both because 

Blackburn has failed to establish that it is proper Rule 

801(d)(2)(D) evidence and because, without more details 

regarding the alleged relationships and UPS's failure to act 

on them, they are clearly irrelevant to the pretext issue. 

_________________________________________________________________ 

11. Blackburn's testimony about what Zileski told him might be 

admissible as a "statement concerning the declarant's own . . . 

relationship by . . . marriage." Fed. R. Evid. 804(b)(4) (hearsay 

exception 

for statements of personal or family history). However, under Rule 

804(b), such a statement is admissible only "if the declarant is 

unavailable as a witness." Here, unless there is some indication in the 

record that Zileski will be unavailable, Blackburn's statement about 

what Zileski told him does not fall within an exception to the rule 

against hearsay. 

 25 
4. Rule 803(19): Reputation Concerning Personal or 

 Family History 

As all of Blackburn's evidence that we are considering 

here involves "personal or family history," the hearsay 

exception in Rule 803(19) would appear to be a particularly 

appropriate basis for finding the evidence admissible. The 

Rule allows for the admission of otherwise excludable 

hearsay, regardless of the declarant's availability (or lack 

thereof), when it consists of: 

 Reputation among members of a person's family by 

 blood, adoption, or marriage, or among a person's 

 associates, or in the community, concerning a person's 

 birth, adoption, marriage, divorce, death, legitimacy, 

 relationship by blood, adoption, or marriage, ancestry, 

 or other similar fact of personal or family history. 

Fed. R. Evid. 803(19). 

a. Background Principles 

The matters of personal and family history that are

within the ambit of Rule 803(19) are often difficult to prove 

through personal knowledge. For example, if a witness has 

not been present at someone's wedding, or has not 

personally seen that person's valid marriage license and 

executed marriage certificate, see, e.g., N.J. Stat. Ann. 

SS 37:1-2, 37:1-17 (1968 & Supp. 1999), he or she 

presumably could only testify regarding the marriage on the 

basis of hearsay. However, "[m]arriage is universally 

conceded to be a proper subject of proof by evidence of 

reputation in the community." Fed. R. Evid. 803(19)

advisory committee's note. This is no doubt because a wellgrounded belief that two persons are married--by those 

who know them, have attended their family functions, and 

have regarded them as a married couple--is sufficiently 

reliable evidence to prove the fact of the marriage. Other 

matters of personal and family history also "seem to be 

susceptible to being the subject of well founded repute." Id. 

That two community members are brothers or that a 

member of the community is another member's father are 

likely to be matters that have been discussed within the 

community and that have become well-established "facts" if 

 26 
no reason has been presented to doubt their truth. 

Therefore, reputations regarding relationships and other 

personal and family matters within a well-defined 

community are considered to have the circumstantial

guarantee of trustworthiness that justifies a hearsay 

exception. See 3 Stephen A. Saltzburg et al., Federal Rules 

of Evidence Manual 1699 (7th ed. 1998) ("[G]eneral 

reputation about facts of interest to the community is 

probably trustworthy . . . ."). 

In applying the Rule 803(19) exception to Blackburn's 

evidence of relatives working at UPS, we must answer at 

least two questions. First, does a person's place of work 

come within the Rule's coverage? And second, what 

foundation is required for testimony to be admitted under 

Rule 803(19)? In other words, is Blackburn's evidence 

sufficiently based on actual "reputation," or is it based on 

some other, less reliable foundation such as rumor or 

speculation? 

b. Relevant Community for Reputation 

On the first question, we believe that Rule 803(19), in 

referring to "reputation . . . among a person's associates, or 

in the community," encompasses one's reputation at a 

place of work. The advisory committee certainly foresaw 

this application of the exception in Rule 803(19): "The 

`world' in which the reputation may exist . . . has proved 

capable of expanding with changing times from the single 

uncomplicated neighborhood, in which all activities take 

place, to the multiple and unrelated worlds of work, 

religious affiliation, and social activity, in each of which a 

reputation may be generated." Fed. R. Evid. 803(19)

advisory committee's note. In the context of reputation 

evidence of a person's character, "courts have readily 

extended the concept of community to include the 

community in which one works, as well as where one lives." 

United States v. Oliver, 492 F.2d 943, 946 (8th Cir. 1974).12 

_________________________________________________________________ 

12. We of course do not decide here whether a witness could testify 

regarding someone's reputation for good (or bad) character within a work 

community, cf. Fed. R. Evid. 803(21) (providing a hearsay exception for 

"[r]eputation of a person's character among associates or in the 

community"), as this issue is not before us. 

 27 
Both before and since enactment of the Federal Rules, 

commentators have made the same point. See 5 Wigmore 

on Evidence S 1616, at 591 (James H. Chadbourn rev.

1974) ("The traditional requirement about `neighborhood' 

reputation was appropriate to the conditions of the time; 

but it should not be taken as imposing arbitrary limitations 

not appropriate in other times."); 5 Weinstein's Federal 

Evidence S 803.24[2] (Joseph M. McLaughlin ed., 2d ed. 

1999) ("Allowing such proof [under Rule 803(19)] to come 

from `associates' reflects the fact that nowadays a person's 

reputation may no longer exclusively be found in the place 

where the person lives, but frequently can only be 

ascertained from coparticipants in the varied activities that 

make up a modern person's world."). 

c. Trustworthiness of Reputation Evidence Concerning 

Family History; Foundational Requirements 

As for the basis of the reputation evidence regarding 

relationships within a workplace, we find little guidance in 

the sparse case law surrounding Rule 803(19).13 We believe, 

however, that the principle behind admitting such evidence 

despite its hearsay origin--i.e., "that general reputation 

about facts of interest to the community is probably 

trustworthy," Saltzburg et al., supra, at 1699--requires that 

a proponent of Rule 803(19) evidence establish that the 

reputation testimony arises from sufficient inquiry and 

discussion among persons with personal knowledge of the 

_________________________________________________________________ 

13. This court has cited Rule 803(19) in holding that a witness's 

testimony regarding her own age "can be considered reputation 

concerning personal or family history, for which an exception has been 

made to the hearsay rule under the Federal Rules of Evidence." 

Government of V.I. v. Joseph, 765 F.2d 394, 397 n.5 (3d Cir. 1985). A 

district court within our circuit has held that family members' 

statements that a particular person lived with the plaintiff, supported 

her financially, and held her out as his child, were admissible under 

Rule 803(19) in a proceeding to determine if the plaintiff was the 

person's child. See McBride v. Heckler, 619 F. Supp. 1554, 1561-62 

(D.N.J. 1985). More recently, the Second Circuit invoked the Rule to find 

that testimony by a criminal defendant's father regarding his belief as to 

where the defendant was born was admissible. See United States v. JeanBaptiste, 166 F.3d 102, 110 (2d Cir. 1999). 

 28 
matter to constitute a trustworthy "reputation." Rumors 

and speculation are clearly insufficient in this regard. 

Testimony by a declarant that he heard, from some 

unknown source, that two people were related in some way 

would be inadmissible under Rule 803(19). Rather, what is 

required is the laying of a foundation of knowledge

grounded in inquiry, discussion, interactions, or familiarity 

"among a person's associates, or in the community" in 

which he works. 

We find support for our reading of the Rule in a number 

of places. In discussing the rationale behind the Rule, 

Weinstein notes that "it is likely that these matters have 

been sufficiently inquired about and discussed with

persons having personal knowledge so that a trustworthy 

consensus has been reached." Weinstein's Federal 

Evidence, supra, S 803.24[1]. Weinstein continues: 

 Before a witness can testify to reputation, the 

 witness must be qualified by showing membership in a 

 group that could have been familiar with the personal 

 or family history of the person in question, namely, 

 family, associates or community. . . . The judge should 

 consider . . . not only the foundation that has been laid 

 for the reception of this reputation evidence, but also 

 such factors as the significance and nature of the fact 

 towards which the proof is directed, the availability of 

 other evidence, and the nature of the litigation. 

Id. S 803.24[3] (footnote omitted). In discussing the similar 

hearsay exception in Rule 803(20), for reputation 

concerning boundaries or general history, Saltzburg

explains: 

 [I]t is considered unlikely that a falsehood could 

 become generally accepted as truth in the community, 

 where the matter is of importance to the community. 

 . . . [T]he testimony must report a general consensus 

 in the community, an assertion of the group as 

 opposed to one or a few of its constituents. The fact 

 that the information has been considered by and was 

 subject to the general scrutiny of the community is an 

 essential guarantee of reliability for the exception. 

 29 
Saltzburg et al., supra, at 1699. As these comments

indicate, when a matter has been sufficiently discussed 

within a well-defined community so that its truth has 

obtained "circumstantial guarantees of trustworthiness," 

Fed. R. Evid. 807, it is properly the subject of reputation 

testimony. 

We find further support for our interpretation of the 

requirements of Rule 803(19) in the more extensive 

discussion of the required foundation for testimony

regarding character reputation. See Fed. R. Evid. 404(a), 

405(a), 803(21). We acknowledge that reputation about 

someone's character and reputation of family relationships 

are, in many ways, very different concepts. The first might 

be thought of as a collective community opinion, while the 

second involves a factual issue. Both, however, require a 

foundation that is trustworthy and a well-defined 

"community" that is capable of, in a figurative sense, 

forming an opinion or discerning a fact. Cf. Webster's Third 

New International Dictionary 1929 (1966) (defining 

reputation as "a particular character in popular estimation 

or ascription"). We therefore find persuasive those

authorities that have discussed the foundation that must 

be laid before a witness may testify about the community's 

opinion of someone. 

The leading case in this area predates the Federal Rules 

of Evidence, but is helpful nonetheless. In Michelson v. 

United States, 335 U.S. 469 (1948), the Supreme Court 

discussed character evidence in the context of a criminal 

trial. It noted that a witness who testifies about a 

defendant's character is "allowed to summarize what he has 

heard in the community, although much of it may have 

been said by persons less qualified to judge than himself." 

Id. at 477. The Court limited this rule, however: "[T]he 

witness must qualify to give an opinion by showing such 

acquaintance with the defendant, the community in which 

he has lived and the circles in which he has moved, as to 

speak with authority of the terms in which generally he is 

regarded." Id. at 478. 

In a pre-Federal Rules case applying the hearsay 

exception we are considering here (for reputation of family 

 30 
matters), the Ninth Circuit reiterated the Supreme Court's 

point in Michelson: 

 It is not every statement or tradition in the family 

 that can be admitted in evidence. The tradition must 

 be from persons having such a connection with the 

 party to whom it relates, that it is natural and likely, 

 from their domestic habits and connections, that they 

 are speaking the truth, and that they could not be 

 mistaken. 

Young Ah Chor v. Dulles, 270 F.2d 338, 344 (9th Cir. 1959) 

(internal quotations omitted). In Whiting v. United States, 

296 F.2d 512 (1st Cir. 1961), government witnesses had 

testified at a criminal trial regarding the defendant's 

reputation on the basis of hearsay of unknown origin. The 

court of appeals vacated the conviction, finding the 

testimony to be inadmissible, as "there must be some 

demonstrable basis evincing the competence of the witness 

to give his opinion" about the defendant's character. Id. at 

517. While we have held that a witness need not know the 

defendant personally in order to testify about his character, 

we have found it sufficient if the witness "knew of [him] and 

his reputation among the community and the persons 

making up at least one of the circles which [he] frequented." 

United States v. Neff, 475 F.2d 861, 863 (3d Cir. 1973). 

From these cases, we discern a clear principle: A witness 

who wishes to testify about someone's reputation within a 

community must demonstrate that he or she knows of the 

person and is truly familiar with the "community" in which 

the reputation has been formed, and that the basis of the 

reputation is one that is likely to be reliable. Where the 

alleged reputation is based on nothing more than rumors of 

unknown origins, or a single instance of "someone told me 

so," a proper foundation has not been laid for admitting 

such evidence under Rule 803(19).14 

_________________________________________________________________ 

14. Of course, if each hearsay link in the communication chain falls 

under some exception, the evidence may be admissible. See Fed. R. Evid. 

805. For example, if witness A knows nothing of an individual's 

reputation, but declarant B, who is qualified under Rule 803(19) to 

testify thereto, informs A of the individual's relationship, and the 

statement from B to A falls under some hearsay exception, A's testimony 

about the individual's relationship would be admissible. 

 31 
d. Applying Rule 803(19) to Blackburn's Evidence 

We must now determine whether any of Blackburn's 

evidence involving allegedly related persons working at UPS 

is likely to be admissible under the exception in Rule 

803(19). We note preliminarily that our determination that 

a workplace may constitute a "community" under Rule

803(19) is limited by the requirement that a proponent of 

such evidence establish a reliable foundation for admitting 

this hearsay testimony. In other words, allegations

regarding relationships at far-flung facilities of a large 

employer such as UPS almost certainly cannot be 

admissible as reputation evidence within a community or 

among one's associates.15 Blackburn has not, in many 

cases, identified the UPS facility at which allegedly related 

persons were working. In order to meet his burden of 

establishing a reliable basis for the alleged reputations he 

invokes, he would need to identify the "community" in 

which those reputations exist.16 Because we find that, even 

without this identification of the appropriate community, 

most of Blackburn's evidence would be inadmissible--and 

because, at all events, we conclude that his relevant, 

possibly admissible evidence is insufficient for him to 

survive summary judgment--we do not dwell on the 

shortcomings in his evidence regarding the work location of 

most of the allegedly related persons he offers. 

Blackburn testified that "[i]t was known by myself,

certainly, and numerous other people, I presume, that Bill 

and Art [Weyrauch] were brothers. I believe that it was a 

regular topic of discussion." App. at 97. Although the 

requirements we have set forth above regarding admission 

of such reputation evidence may not be met by Blackburn's 

testimony, we will assume that upon further development 

of the background to his allegations, this testimony might 

_________________________________________________________________ 

15. UPS currently has 326,800 employees worldwide, and 291,500 in the 

United States alone, at more than 1700 facilities. See UPS at a Glance 

(visited June 3, 1999) http://www.ups.com/about/glance.html>. 

16. We do note that most of Blackburn's examples appear to concern 

UPS employees at facilities in Northern New Jersey, which might 

constitute an adequate community for Rule 803(19) purposes, assuming 

that they are somehow linked to each other. 

 32 
be admissible at trial, see Petruzzi's, 998 F.2d at 1234 n.9, 

and we therefore consider it below in our analysis of 

whether summary judgment for UPS was properly granted. 

As for Don McKenny and Vern Cormie, Blackburn could

not state how they were related, and admitted that the 

basis of his information that they were related was

"something that I was told by someone I worked with at 

UPS sometime before I left the company." App. at 97. This 

clearly fails to meet the standards we have outlined for 

reputation evidence under Rule 803(19). Not only does it 

appear that Blackburn does not know McKenny and 

Cormie (i.e., he could not identify their alleged relationship), 

but the source of his information--"something that I was 

told by someone"--cannot even be identified, let alone 

measured for its trustworthiness. 

The same is true of the alleged relationships between Joe 

Rossano, Jack Davies, and Joe Reynolds (relationship 

unknown, and information based on "something that 

someone told [Blackburn]"); between Lorrain Curley and 

Dan Grace (source of information unknown); between Karen 

Montemarano and an unknown driver; between Kathleen

Jewell and an unnamed relative ("I just remember that she 

had a relative of some type working there"); and between 

Howard Kaufman and "Mindy" ("it was my understanding" 

that they were related). Each of these cases fails to meet 

the standard we have established for admitting hearsay 

evidence under the exception for reputation concerning 

family matters. In each case, Blackburn does not appear to 

be familiar with the persons named, fails to identify the 

community involved, and does not establish any basis, let 

alone a reliable one, for the information that he is offering. 

In other words, he has failed demonstrably to identify a 

reputation concerning family relationships that would bring 

this testimony within the exception in Rule 803(19). 

Finally, while we have held that Blackburn may not 

testify about what Zileski told him, as this is hearsay not 

within any exception, see supra note 11, Zileski himself 

could almost certainly testify at trial that Manzi is his 

brother-in-law. We will assume that Blackburn's testimony 

regarding what Zileski told him was effectively a proffer of 

the testimony that Zileski himself would give at trial, and 

 33 
we therefore treat this as evidence capable of being 

admitted at trial. However, Blackburn has presented no 

evidence that UPS knew of Zileski and Manzi's relationship, 

or that the company knew and did nothing about it. 

Therefore, this evidence, while potentially admissible under 

a hearsay exception, is not probative of pretext. 

5. Summary Judgment 

We conclude that Blackburn's evidence that UPS 

decisionmakers were aware of his relationship to Shepard, 

and later fired him for his whistleblowing activity under the 

pretext of its anti-nepotism policy, is, without more, 

insufficient to overcome summary judgment. As we have 

detailed supra Part III.C.2-.4, we find that virtually none of 

his evidence regarding other UPS employees who were

allegedly related would likely be admissible at trial as 

relevant evidence that falls within a hearsay exception. We 

must therefore determine whether Blackburn has offered 

sufficient evidence to create a genuine issue of material fact 

regarding UPS's stated reason for firing him. 

Blackburn concedes that there were numerous instances 

in which UPS terminated employees who violated its antinepotism policy. We have held that only the following 

pretext evidence might be admissible at trial: Blackburn's 

testimony that Bill and Art Weyrauch were generally known 

as brothers among UPS employees, and Shepard's 

testimony that she informed UPS's interviewer about her 

relationship to Blackburn. This scintilla of evidence is 

clearly inadequate to create a genuine issue of material fact 

on UPS's proffered reason for firing Blackburn. In sum, on 

this record, we are satisfied that, even assuming that 

Blackburn has met his prima facie burden under CEPA, he 

has failed to adequately rebut UPS's proffered reason for 

his discharge by pointing to sufficient "inconsistencies or 

anomalies that could support an inference that the 

employer did not act for its stated reasons." Sempier v. 

Johnson & Higgins, 45 F.3d 724, 731 (3d Cir. 1995). The 

judgment of the District Court will therefore be affirmed. 

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A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 35